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I received the following email and this attached Word document from the lawyer at sms.ac. It looks like a form letter to me. I have no idea what activity they think is illegal and I'm waiting to hear back from them. Has anyone else received this letter from them? See the word document for the slightly different letter in its full color all caps glory.

Kevin B. Jones, Esq.

NOTICE OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS

UNLESS YOU IMMEDIATELY CEASE AND DESIST YOUR ILLEGAL ACTIVITY, YOU WILL BE PROSECUTED

THIS DOCUMENT CONTAINS INFORMATION THAT IS THE CONFIDENTIAL AND PROPRIETARY PROPERTY OF SMS.ac AND MAY NOT BE COPIED, PUBLISHED, OR DISCLOSED TO OTHERS, OR USED FOR ANY PURPOSE OTHER THAN REVIEW BY AUTHORIZED INDIVIDUALS, WITHOUT THE EXPRESS WRITTEN AUTHORIZATION OF AN AUTHORIZED OFFICER OF SMS.ac.

If received by mistake, please inform SMS.ac of the erroneous transmission by immediately replying to the email and then delete the mail and its possible attachments without opening, copying, distributing or retaining any copies thereof.

For more information on sms.ac see Google. I wonder if they got the letter too. ;-)

UPDATE: See Chilling Effects for a great site about how to understand and deal with these sorts of letters.

88 Comments

You've no culpability that I can see. Furthermore, I defy anyone to identify a single line of logic or meaning in this letter. It's nonsense. They deserve to be slapped in the face repeatedly with a dead fish.

Stewart, my understanding of confidentiality is that you have to agree before you are bound by it. It can't be forced on you one way. I think that paragraph is legal FUD. I didn't receive the email by mistake, since it is addressed to me clearly from the whois data they quote. They may have SENT it by mistake however. Hopefully I'll hear back from them about what exactly their complaint is.

well Joichi, maybe they didnt enjoy your post regarding the "apologies for spamming friends" and the "fact that they keep sending you invites even when you delete the Ïnvitation"for 5th time..... Even when they clearly say that this will happen when you sign in ;)

Anyway the service might be good or bad, i just dont like it due to the reasons you posted about and the constant invites im getting.. even less when they threaten you with that colorful legal letter :)

Mariano, I'm not sure whether I would say they, "clearly say." See this blog post on brownpau for a step by step breakdown of how you sign up works. I think that one problem is most people have gotten used to clicking "next" without reading too carefully when they want to test something out and they often miss the fineprint. As brownpau says, some companies try to protect people from this and others try to exploit it. But that is why my earlier blog post was an apology from me. I should have known better.

This is so absurd. Reminds me of when I interned at a farm in upstate New York, where they allowed me to use a Sony Mavica digital camera. Later I got a form letter from a lawyer asking me to remove the photos; even though I was not infringing any rights or showing an intellectual property.

You used their trademark name in a post and defamed them by referring to their service as 'spam', even though the SMS’s that it was sending were not spam per-se, their software stated that the messages would be sent when you login. So it seems they might have a claim for defamation.

You have now copied both their cease and desist letter and document onto this site for public viewing despite the warning not to. Time to get your lawyer to ask them for clarification - I dont think this post here will help you.

There is a very fine line between criticism and defamation – you are about to find out where it is. Good luck.

Wow, this is pretty creative way to harvest email addresses or IP addresses that tied to a domain name registration. I wonder the process of this fully automated. If so it will be self describing the owner of such a system has some what criminal intent.

BTW when will we see the world that a legal document without digital signature has no legality if the document is an electronic message?

Nik, I was using the word "spam" as a verb. Spam often refers to unsolicited email and from the perspective of my friends, I think it might be close to that definition. Using a trademark name in this context is fair use. They can claim anything they want, but as far as I can tell, they have no case. I am interested in what they come back to me with. I'll let you know.

I think defamation is: "Communication to third parties of false statements about a person that injure the reputation of or deter others from associating with that person." As long as I am stating facts and not false statements, it isn't considered defamation.

Yes, Joi, but whether it's truthful or not all hinges on the definition of a very nebulous word: spam. Think about what the average person construes this to mean, and whether their reputation might be damaged from the perspective of that person. IMHO, the definition of spam in the eyes of sms.ac's average customers would have to be litigated in order to know whether this is defamation...

Other than that, I have to say this letter was extremely poorly written. If I were their attorney, I would not want to leave you trying to guess what the offending content is. I would be very specific about it.

As for their copyright in the letter, they can most likely now sue you for copyright infringement as well, since you posted the entire letter verbatim when they expressly did not give you their permission.

I think they've read the Cluetrain Manifesto and they're just trying to start a conversation. Albeit one in which they speak through their lawyers and decide the best course of action is to (further) alinenate broad swaths of people who they should be courting as allies and customers. Color them: Clueless.

Trevor: If you read what I said in my post, I said that I apologized for spamming my friends. The subject of the sentence is "I". I used sms.ac to spam my friends. I'm not calling sms.ac spammers.

As for copyright, this is clearly within my fair use rights. In addition, it's not like there is a market for C&D letters where the value of their letter will be diminished by my posting of the letter. Copyright is not meant to protect confidentiality, but rather to protect creative works and the value of those works.

Well, my middle son for some peculiar reason decided that sms.ac was interesting and set up an account. So I and his mom received invitations. I have done the "don't invite me any more" and I am now up to the 4th reminders from these characters, so I can attest that I am being spammed by them. I have no relationship with them, they do not have my permission to make further contact, and I would like them to cut it out.

I could not figure out the business model, since my cellular service (t-mobile in the US) is over GSM and has SMS. Furthermore, my wife started to sign up and stopped when she saw that it isn't exactly free either, so I helped her get through the opt-out process (which seems to have worked).

I demonstrated to my son that he has SMS too, by sending him an SMS message from my phone, without any assistance from sms.ac and certainly without their downloading anything to my SIM, thank you very much. And he replied to it. I don't think my son has sustained his original curiosity, but now there is all this junk flying around.

If they plan to sue all of us who have posted warning messages like yours in our websites, they'll sure have plenty of work to do... I too posted about them back in Dec. 12 (same case as yours), ohmygod, I even featured their logo in my post, I'm busted for sure!

Anyway, they seem to be starting from the top of the Google results page, therefore I'll be safe for at least a couple of days. Any country I run to where I couldn't possibly be extradited? The Ascension Islands, maybe? :-)

This looks like a nice case for one of these collective class action suit. Lawyer, anyone?

I cannot understand the reason they didn't contact you before sending their letter. I guess they have made a serious mistake.

Anyway, I was thinking about a related issue. Let's say that you talk with people from sms.ac. Let's say that both of you agree that your original post was not appropriate (I'm not saying that you were wrong, it is just a hypothesis). Would you consider to delete your post? Would you update it or write a new post apologizing instead?

And what about those posts pointing to your original post? What about those commenting on it (now there are five trackbacks and nine inbound links from Tecnorati)? What about search engines results when looking for "sms.ac"? What about Internet "memory"?

"UNLESS YOU IMMEDIATELY CEASE AND DESIST YOUR ILLEGAL ACTIVITY, YOU WILL BE PROSECUTED"

For starters, defamation lies in the realms of civil law, and thus you cannot be 'prosecuted'. Prosecution lies within criminal law, and you've certainly not committed a crime. Some lawyer they have got, who is possibly breaking their code of professional conduct! Ignore the bullshit, and the company deserve the adverse publicity, because they simply suck.

Secondly, you are stating an opinion, and what happened to you. There is a fine line with libel.

I signed up for sms.ac a year ago or so, on the advice of a friend. Worse thing I ever did. It sucked all the credit from my phone, with unsolicited random text messages that I did not ask for. I understood at the time that it was just a service for friends to sms me via a website, if they wanted. This was particularly useful for international contacts of mine. Instead, I got random texts from strangers and they wouldn't stop.

The only way to control it, was for me not to top up the credit on my phone, which meant that I could not reply to standard texts from friends for a while.

I think you should very politely send them a mail asking them if they acknowledge that they have sent you the mail.
They can always claim that the mail was not sent by tehm. After all you know better than me that the 'from' on the e-mail does not actually mean much.

If they do we should consider if there is the base for a big lawsuit for spam (which IS illegal). Or breaking laws about privacy (by collecting information).

Pablo: I suppose if they could convince me that I had posted something untrue, I would put an update in my original post and post another entry. I waited several days after receiving this letter before I posted it as well. Several emails were sent asking them to clarify their position giving them an opportunity to discuss the issue. Hopefully, they will contact me and tell me more precisely what they want.

Joi, Excellent example of companies using COPYRITE to keep their marketing disaster type threats confidential but imagine if the document was in a proprietry format that you had to 'circumvent' to copy and paste it - then you would be in DCMA style trouble. Ah, fair use how we will miss you.

I always start laughing when I receive email from a party I have never done business with before or agreed to any contract with that sends me email that states that receiving the email constitutes a contract of some kind. Nope, a contract requires two parties' agreement to party. My email server accepting email doesn't constitute an agreement to terms. For shrinkwrapped software, the case is still out (in states that haven't approved UCITA's terrible package of laws) as to whether opening a package means agreeing to terms.

But it's clear in the email world that unsolicited email of any kind isn't protected by secrecy. It *might* be protected by copyright, a la the whole J.D. Salinger letters issue of many years ago. Salinger's private correspondence to another person was deemed his copyrighted material, if I'm recalling details correctly.

So you might have violated their copyright by publishing the letter, but in this context, I don't believe they have any ability to expect that the letter would remain a private communication without previous agreement from you.

Are 'sms.ac' spammers? I'd say so. Most definitions of 'spam' include 'sending email to recipients who have not asked to receive it'. That seems to describe their practice quite accurately.

A friend of my niece's signed up with 'sms.ac', and apparently didn't read their fine print too closely. As a result I got four messages from 'sms.ac', advertising their service and telling me to sign up in increasingly petulant tones. Did I ask 'sms.ac' to send me mail? No. Am I within my rights to consider their mail spam, and describe it as such? I believe so.

"But we had the permission of your niece's friend to send you mail.", they would presumably say, "therefore it's not spam." Bull. My niece's friend - who I do not know, have never sent mail to, and have never met - has no authority to invite people to send me mail. A spammer might just as well send spam and then say that they'd given themselves permission to mail me, therefore it isn't spam. (A lot of spammers seem to think like that, actually).

The kind of letter you've received, incidentally, is known in the anti-spam community as a "cartooney" (derived from "attorney" and "cartoon"). Cartooneys are threatening letters couched in quasi-legal terms, typically without legal merit and sent for intimidation effect only.

If your case does come to court, I think you'd find plenty of people willing to contribute an affidavit describing their experiences with 'sms.ac', and testifying that they consider sns.ac's unsolicited messages to be 'spam' in the common understanding of the term, no matter whose authorization they think they've received. Maybe some large anti-spam organization could even file an amicus curiae brief ...

FYI, sms.ac is a spam/scam SMS company (what does their name anagrammically spell out?: scams).

Furthermore, google them to find out how they are set up as a cult, using typical cult-like structures. Employees are not really compensated, all kinds of insane stuff goes on there.

I work in the wireless messaging world, with all the US carriers. Sms.ac does not have ONE single data connection with the carriers, they use the 'external gateways' to connect. They are known as the dark side of our industry, in that they have ruined multiple foreign markets beacuse of their fraudulent and spam policies. They had some data connections and were able to charge premium rates to sms subscribers in Indonesia, but they were quickly disconnected by the carriers there because of their spamming.

Also, note that they won't stop contacting your address book for a few weeks-- they'll send 4 emails to each address submitted (a pleasant little reminder service of theirs) and once you opt-out they will contact you again.

They are the creepiest corporation around in the wireless data services space. They are even weirder than jamster, the Verisign owned 'tones & wallpapers' outfit that's just bought US $20M of advertising on US TV networks.

I'm glad this post brought about so much discussion. Trying to remember the joke about a sinking ship, rats, and something about lawyers.

Anyway, certain family members allowed me to take photos of me. I posted them to my Flickr site, which friends/family saw. Everyon enjoyed these candid moments of a family gathering last year. After a petty arguement, they threatened me to remove the photos from my site!

Why? It is totally ethical to blog about these issues or photos if we consider/respect the individual or corporation.

Now, it is unjust for SMS.AC to continually send me e-mails and not inform me that they will charge .35 cents for their cellphone spam to my phone. Sure, I didn't read the fine print, but that's to me, part of their scam.

So i figure if anyone has any questions about why they are getting spammed they can direct e-mails to kjones@sms.ac Also reading that very colorful threat most of the legal mistakes make sense if you look at his name he is Kevin B. Jones, Esq. - Deputy General Counsel. Esquire meaning he isnt a real lawyer.

I remember seeing an ad posted on Monsterboard I believe where sms.ac was looking for in-house counsel or maybe even a general counsel. Wondering if they actually filled that position given this ridiculous message to Joi. On the other hand, I got a pretty nasty email from a senior guy in Swisscom Eurospot's Dutch office when I complained about their service on my blog. Cory Doctorow came to the rescue by posting a note on BoingBoing saying he was also a victim of their dreadful service. You have to wonder about companies who senior executives spend more time suing customers or sending nasty emails instead of improving their service.

Joi: In my opinion, it doesn't really matter what the 'purpose' of copyright is. If someone sends you a letter, and explicitly says they reserve their copyright, I'm pretty sure copying verbatim the _entire_letter_ will be an infringement. Fair use (which is a defense) usually works best with limited copying. As someone mentioned, there are cases on letters that will most likely apply to email.

The issues don't really change just because email is short... They do not give you an automatic implied license to publish it just by sending you the email, especially when they explicitly reserve their rights...

SMS.ac is a local startup here in SD. I had a few interviews and after getting a weird vibe told them i wasn't interested. Apparently, others have felt the same way - maybe you've seen all the negative links on google, as you mentioned, but this one takes the cake:

Trevor: I think you're wrong. I'm doubtful that the letter is copyrightable and even if it is, I am clearly using it in fair use. Limited quoting is one aspect of "fair use" vs copyright infringment, but it is merely one part of a number of factors that determine what if something fair use. One important factor of fair use is whether I am diminishing the market value of the content I am using. I don't believe this letter has much market value at all. Again, copyright is about protecting commercial rights, not confidentiality or privacy. There are different laws for that.

Thanks for posting this and letting people know about the online service. I might have been one of the many stupid people who joined that service had you not done this. There are tons of lame companies out there selling shlock services, that need to have their heads (CEOs etc) examined. SMS spam is as bad as or worse than email spam, most providers charge a fee for messages on your phone. Why should I pay for spam???

"It is clear that letters are regarded as a form of literary property, regardless of their intrinsic merit, and regardless of whether they are intended for publication. Subject to the recognized exceptions enumerated below, and to any contrary agreement of the parties, the general rule is that the author of a letter retains the ownership of the copyright or literary property contained therein, while the recipient of the letter acquires ownership of the tangible physical property of the letter itself. This creates a somewhat strange dichotomy of rights. The recipient of a letter has the absolute right either to destroy it, or preserve it and permit its limited inspection by others, or to transfer its possession to others. The author of the letter retains the exclusive right to permit or prevent the copying of the letter and its publication."

1-5 Nimmer on Copyright § 5.04

Yes, there are a few exceptions, but I think it is pretty clear what the general rule is, regardless of the actual commercial value of a letter... The last sentence is particularly relevant.

Right. Letters can be called literary property, but they have to meet the basic requirement of having something original. IE it can't be a copy of something else or void of anything original/creative. The letter we are talking about is a few boilerplate VERY common legal phrases and my personal information. I don't see anything literary or creative and therefore copyrightable. Also, when you argue fair use the commercial value does have a bearing. That was my point about bringing up the commercial value element.

I have a number of friends who have signed up for the service of this company and as a result I am the unhappy receiver of their spam. But what I found most tasteless is that the spam basically impersonates those friends that signed up. So instead of getting a 'clean' advertisement spam the from sms.ac the name of the sender is My-friends-name and then they just keep on sending the invites. Sadly they are my most avid corresponders these days humans dont bother writing me anymore. :'-(

You're right Joi - the commercial value is a factor in fair use. I think that if you were to post only excerpts, you'd be clearly within your fair use rights. There is also an exception where publishing of the letter is necessary to defend your character, which is possible here too.

So it's possible you could win your argument as to fair use, but as for originality, the test is very liberal with what would be called 'original'. Basically, it just can't be a copy of something else, or something purely functional. Pietro had it right on this point, I think.

So I would tend to think that it is copyrightable, and you are infringing, but your defense of fair use _might_ prevail. The caveat is that you are disseminating the exact and complete file, which doesn't weigh in your favor...

Just read the comment about HI5. I was suckered into putting in my MSN password and they sent me spam worse than SMS.AC. In fact, there was no option to delete myself and many people complained to me about getting unsolicited e-mails from them.

Do what you will with this info.. it is freely available on the internet... I have already signed up a fake hotmail account... placed them in my address book and then regisitered to them.. hopefully they will spam themselves a little...

"XXXXXXXXX has invited you to join XXXXXXXXXX mobile friends community.

Simply confirm or reject your relationship with XXXXXXXX.

Don't want to be invited by your friends?
Click on the link above to "block future invitations" from family and friends.

You guys are lame. If you ever read before signing up like I just did it says it sends to all your buddy list emails. The problem with the world is you're all idiots. sms.ac is pretty decent service and I haven't had any problems with it and no spam. As with any service you will get spam no matter what, and no service is perfect (i.e Microshit, hotmail, gmail, yahoo) all SPAM. They all sell your email ;) so get use to it and get a brain and read before you rush to click submit. That and never give anyone your PASSWORDs that's the dumbest thing YOU CAN DO. And I assume you all did that hahaha.

THIS DOCUMENT CONTAINS INFORMATION THAT IS THE CONFIDENTIAL AND PROPRIETARY PROPERTY OF me AND MAY NOT BE COPIED, PUBLISHED, OR DISCLOSED TO OTHERS, OR USED FOR ANY PURPOSE OTHER THAN REVIEW BY AUTHORIZED INDIVIDUALS, WITHOUT THE EXPRESS WRITTEN AUTHORIZATION BY me.

I never gave SMS.ac my password! I never even game them my phone number! It is wrong for you to be able to rip of fellow mobile phone users using just their phone number - which is all you need with SMS.ac!! SMS.ac do indeed suck alot and Tim Jacobs is probably an employee because after careful inspection of the services I don't see it could be useful to anybody.

Just so you know, the fact that something is true might protect you from defamation, but it doesn't always protect you from a lawsuit under privacy legislation. Maliciously exposing private facts about a person or company can also be illegal, and privacy law varies greatly between countries/states/provinces. While what you post may be true, it is unquestionable that you posted it with an intent to cause harm to sms.ac's business. You should see a lawyer.

Those of you who feel you were mislead when signing up for SMS.ac and were charged for something you feel you didn't opt in for should contact rthompson@cmwlaw.net. Thompson is the lead counsel for a class action suit against Jamster.com (a similar situation) and is surely qualified to handle this type of case.

Notice that the cell phone companies are also named in the suit. This could be a big money lawsuit. Isn't it about time you got justice? You may be eligable for your money back plus damages if you have proof of the billing in the form of your mobile phone bill. All it takes is one brave and serious individual to lead the case and the attorney will take the case in exchange for a part of the settlement. In other words it will not cost you a penny more than a few phone calls to make a big difference putting an end to this scam. Also all other people in the planet who were also wrongly billed will also be able to recover their losses thanks to you. Something to think about anyway.

Joi, I haven't read all comments (too much for me), so maybe you have spoken about it, but: How do you know that the mail with the letter is not a joke from someone? It would be the first thing I thought if I received such a mail.

I know I am being a grammar nazi here but seriously ... how are we expected to take someone like this seriously, he doesn't know how or when to use an apostrophe. The above folder name would be short for "IP Infringer Is" I guess.

I've been looking into this hi5.com thing since September 15th, 2005. I'll let you know how "interesting" this can get...

First of all, since hi5.com may be tied to other "legitimate" businesses (sms.ac, for instance), there's still nothing that would keep them from accessing nor selling a bunch of usernames and passwords from some people who unwittingly gave away their information. Good or bad ? Make sure you take steps to resolve your side at least, like requesting or performing a password change on your e-mail addresses that were affected.

Second of all, I've started noticing some people that may be capitalizing on the hi5.com "e-mail virus". The summary of the tactic is this: once the e-mail link is clicked in the hi5.com (or other, similar invitation) message, there can be an authorization/command to perform a system download of anything. This can range from a Windows Update to an executable program (such as data9.bootseek.com or a similar boot sector worm/virus). Is this new ? Not if you've been writing viruses in DOS. Is this a new variation of virus delivery ? Yes.

There you go. For now, I'd be careful when clicking on e-mail links if you aren't 100% sure where/what that link will actually do. Most people have the common sense to forget the message, or just say/do nothing about testing unknown waters.

So, if I would like to blackmail people I can attach a disclaimer note like:

"THIS DOCUMENT CONTAINS INFORMATION THAT IS THE CONFIDENTIAL AND PROPRIETARY PROPERTY OF thebadguy.ac AND MAY NOT BE COPIED, PUBLISHED, OR DISCLOSED TO OTHERS, OR USED FOR ANY PURPOSE OTHER THAN REVIEW BY AUTHORIZED INDIVIDUALS, WITHOUT THE EXPRESS WRITTEN AUTHORIZATION OF AN AUTHORIZED OFFICER OF thebadguy.ac".

So the person who is blackmailed cannot present this letter to the police or publish the name of the criminal.

That's nice!!! So let's start blackmailing people...

Additionally, If i receive a mail, who was sent to ME, in regards of my life and my activities, is this mail property of the sender or is my property.

Hello, i've been following these comments closely because i was hoping someone would tell me how to 'unsubscribe'. I would also like to point out to the writer of comment #63 that although i am receiving sms.ac spam, i never once visited their website, nor did i provide them with my hotmail account and/or password. All the spam i have received has been cellular, and i am getting sick and tired of having to pay for these stupid messages.

I just had the same problem, just go online to sms.ac all you have to do is chat to the help desk online tell them your number and they will cancel your account.. O and dont forget to have a big winge too! THOSE BLOODY BARSTARDS at SMS.ac,, I want to know why I'm paying for something I didn't even subscribe too! SMS.AC YOU F'n FREAKS!
Yes I'm planning my revenge to the Blagard who got your koney and my money!!! Anyone else with me on this one ?

SMS.ac simply closed it's door and became a new company called FanBox (www.fanbox.com). FanBox is doing the same Text Messaging reverse billing scam using unsolicited cell numbers stolen from users address books who never suspect the text messaging charges. The scam begins by siphoning cell phone numbers from unsuspecting users who sign-up on FanBox providing email account and password. FanBox slips into ones email account grabbing phone numbers and more potential sign-ups sending emails to all email address in ones address book. Guessing that people who sign-up have 100's of valid cell phone numbers, those number are then used in unsolicited SMS text messages, generating funds for both FanBox and the telcos as a 50/50 split of 35 cents per sent SMS Text Message. The stolen email address help aid in the recruitment of more innocent victims who are invited to join FanBox, giving away their password credentials too. Just like the mail fraud their CEO committed and was convicted of before in the 90's, he now plays in the lawless land of text and email 'fraud'. You will simply leave there depressed knowing you too were part of the fraud once you discovered the 'real' business model. As a financial processor inside, I was quick to learn FanBox is skimming their cash flow to avoid both federal and state taxes. As a good person, don't think you can turn around a company of people that's bad to the core --especially when it is the core. Whistle blowers be advised the evidence is not provable. FanBox covers it tracks very well. If you think your going to go public, just remember a company that is hiding numbers to avoid prosecution cannot and will not ever go public. IPO is a bait and switch for salary and a carrot you will never realize at FanBox.

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